APRIL, 1810. Depew V. Howard. the land in dispute of one Thomas Welch, who had then resided on it several years, for a valuable consideration paid out of his the defendant's property; that he was in peaceable possession of the said place until he came last to Kentucky, in the year 1789, which was subsequent to the location under which the complainant claims. Mary Howard, by whom the entry complained of was made, (in the absence of her husband it appears,) swears, in a separate answer, that Depew never made his claim known to her; but that, being informed he intended to enter for the place called Welch's, and, thereupon, dreading lest there might be some defect in Welch's title, she went immediately to the Surveyor's office and examined whether Depew had made an entry to include Welch's place, and found none; that she got the Surveyor to examine his entry book, which he did particularly, and told her there was no such entry; upon which she made her location to include it. This entry was made by her October 9, 1788, and Depew's on the 30th of September preceding; but, "from the objects of description in the location, neither she nor the Surveyor thought it was intended to cover the place known by the name of Welch's." John Depew's entry, under which his son Jacob Depew claimed, was by virtue of a land-office treasury warrant of 17,854 acres, for "fifty acres of land on the waters of Glade Creek, joining the lines of the land of John Howard, and his own land on Welch's run." Mary Howard's entry, by virtue of a land-office treasury warrant of 500 acres, was for "250 acres of land on the waters of Glade Creek, joining the lines of the land she lives on and William Francis's land and James Goodman, to include an old survey known by the name of Welch's place, and a new survey joining said Francis, and the one she lives on." The answer of Benjamin Howard, by whose agency, as attorney for John Howard, the surveys were completed, states that he employed the surveyor to make the surveys, but was not present when they were made, being called on business down the country, and having intrusted the surveyor to survey the entries regularly. George Lemmon (a purchaser from the defendants) admitted his being in possession of about 120 or 130 acres of land for which he had not received a conveyance. All the defendants positively denied all fraud and combination. Another entry made by Mrs. Howard, on the 14th of March, 1782, being for "500 acres of land joining her own land, and the land of John and Hugh Mills, and to extend to the mountain for quantity," was mentioned in the bill and answers, but does not seem to have been relied upon by the defendants. The decree of the County Court was, "that the patent or patents that had issued for the defendants, so far as they interfere with the lands of the complainant, be annulled." The Superior Court of Chancery for the Staunton District "being of opinion that Depew's entry was too vague, and that the appellants (having the legal title) ought not to be compelled to relinquish it to one who has not greater equity," reversed the said decree, and dismissed the bill; whereupon Depew appealed to this Court. APRIL, 1810. Depew V. Howard. Hay, for the appellant. The entry of Mrs. Howard in 1782, had no relation to the land now in question; neither, in fact, did she rely upon it, as appears by her making the subsequent entry, which expressly calls for Welch's place. The only question, therefore, is, whether Depew's entry was sufficient; for, if so, her entry in 1788, being made nine days after his, was void, since it evidently comprehended the right of another person. (a) In Hunter v. Hall, 1 (a) Rev. Code, p. 344. Call, 209. it is said that, without a previous survey, no per- s. 1. son can strictly conform to the terms of the act of 1779, in making a location; but that that act "unavoidably requires, and has uniformly received, a liberal construction in this respect." Where an entry is made in a waste country, with no patent lines to refer to, it is reasonable to require the locator to specify his beginning and courses as nearly as 1810. Depew APRIL, possible: but, where there is much patented land, a general reference to lines already ascertained ought to be sufficient. Indeed, if the person locating undertakes to specify the lines he probably might conflict with some older patented lands. Howard. (a) 1 Rev. Code, 144. But, admitting the first entry vague, does it necessarily follow that the second (though precise) shall avoid the first in toto? It would be more reasonable (and I think it has been so decided) to give the second locator his choice, leaving enough for the first. Thus justice would be done. to both parties, in case land enough for both could be found. Wickham, contra. 1. Every objection to the entry of Mrs. Howard, in 1782, on account of vagueness, applies equally to that of Depew; and her's is the superior equity. The conduct of Depew is entitled to no favour. He evidently appears to have meditated an unwarrantable advantage over the appellee. The objection that her survey comprehends the right of another has no application. It does not appear to be the fact; and the law (a) applies to cases only where it evidently appears on the face of the plat or certificate of survey. Admit that the letter of the act of 1779 is not to be insisted on; that mathematical certainty in making an entry is not requisite; yet surely a reasonable certainty is necessary, to prevent great injury to the Commonwealand to individuals, for, otherwise, a warrant of 50 acres might cover 500, and persons wishing to survey adjoining lands would be put to unnecessary expense and trouble. I do not contend it is absolutely necessary to have a certain beginning, though it is desirable. Where an entry is "of all the vacant land within certain points," or "including certain objects," it is sufficient. But, in the present case, Depew's entry was altogether uncertain; there being not less than three different places where he might have. surveyed and satisfied the calls of that entry Greater certainty is required, and attainable, in a settled country than in a wilderness; because, in the former, old lines are well known, and natural objects have fixed names. It may be objected that Mrs. Howard acted improperly in shifting her location; but, being in possession, she had an undoubted right to pursue all legal means to protect her title; on the same principle which authorizes a third mort. gagee to protect himself against a second by buying in the first. 2. The question now in dispute was proper for a caveat, and not for a Court of Equity. The bill assigns no certain reason for not prosecuting the caveat, but says it was dismissed, either because the small pox was at the Court-house, or the caveatees were out of the country. If the former was the case, it was a good ground for a continuance. If the latter, the Court should have directed a publication against the absentees. A caveat was peculiarly proper; since every ground of equity as well as law might have been taken upon it. Call, in reply. Depew's entry was sufficiently certain. The words "joining the lines" must signify lying along the lines, in their whole extent; not barely touching them, as Mr. Wickham seems to suppose. The Surveyor and Depew supposed, from the narrowness of the space, that the 50 acres would fill it. No particular form of words is necessary in an entry; but certainty to a common intent is sufficient; and, as in deeds, so in entries, the intention of the parties ought to furnish the rule.(a) APRIL, 1810. Depew V. Howard. (a) Pow. on Cont. 242. 6 There can be no inconvenience in an entry's covering East, 104. more land than the party is entitled to; for any person wishing to make another entry has a right to call on the first locator to survey his land; as in the case of surplus land included in a patent. (b) A poor illiterate man ought (6) 1 Rev. Code, 148. not to be defeated of his property, because a public officer has made a mistake. In Field v. Culbreath, (c) and Hunter (c) 2 Call, v. Hall,(d) the several entries established were not certain than this. In Currie v. Martin,(e) Banks's 547. more (d) 1 Call, 209. entry (e) 3 Call, 28. APRIL, (assigned to Currie) 1810. Depew more uncertain. The entry, too, was more uncertain in Consila v. Briscoe;(a) and yet was supported by this Court, to which the appeal was taken Howard. from the Supreme Court for the Kentucky District. In (a) Hughes's Miller v. Page, it was held that the entry was too vague: Kentuc. Rep. but there, the word “between" certain lines was considered too indefinite: here, it is “joining the lines of John Howard," &c.; which is sufficiently certain. 43. Mort. 501 ci A subsequent mortgagee, having prior notice of a se(b) 1 Pow. on cond, has no right to buy in the first.(b) So here, Mrs. ting Cowp Howard, having knowledge of Depew's title, and frauduAtk. 646. Le. lently affecting to misunderstand it, shall not be protected by her subsequent entry. 712. and 3 neve V. Le. neve. As to the question of jurisdiction, the case of Witherin(c) 1 H. &M. ton v. M'Donald, (c) is clear authority that a Court of Equity is the proper tribunal to try the question of fraud in obtaining a patent. 306, Wickham. The case from Hughes's Reports has no application. It was a settlement case; and "that gives locality." Such is the express opinion of the Court. Added to which circumstance, the certificate of the Commissioners was considered part of the entry. Miller v. Puge is a direct authority in our favour. In Currie v. Martin the " beginning" of the entry rendered it certain enough. In Field v. Culbreath, the entry, "including all the vacant land be tween certain lines" was also certain. As to Mrs. Howard's being bound to take notice of Depew's entry; she had a right to disregard it, if void; if not void, it stands on its own merits. *Note. In Miller v. Page, (May, 1806,) Miller's entry was for "1,000 acres, between the lines of Henry Cary, deceased, on both sides of Hatcher's Creek, beginning on the same." Judge ROANE was of opinion that this entry was sufficiently certain; but the rest of the Court decided otherwise. |